Centerblue.org

The Total Information Awareness blog pointed out something that had previously escaped my notice: that GOP senators Kyl and Graham attempted to deceive the Supreme Court in its recent Hamdan v. Rumsfeld decision striking down Bush’s decree to try Guantanamo detainees through military commissions in contravention of the Geneva Conventions and international law.

The story is rather complex (and is explained fully here), but boils down to this: These two senators passed a Senate resolution amending the previously passed Detainee Treatment Act that, among other things, would have denied the Supreme Court jurisdiction over both pending and subsequent federal habeas corpus appeals. Other senators (especially Senator Levin) expressed concern over such a move, indicating that extending the amendment to pending appeals would invalidate the Court’s jurisdiction over the Hamdan case, which had been approved for review by the Supreme Court. An amendment was passed to the original amendment, redrafting the effective date so as to suggest that pending appeals would not be affected.

Congress’s “legislative record” includes comments made on the floor when passing legislation. It is intended to help future interpreters of laws (such as the courts) determine Congress’s frame of mind when passing the law in question. In this case, the legislative record made clear that Senator Levin felt that the amendment did not apply to pending cases, thus leaving Hamdan alone. Senators Graham and Kyl wanted others’ cooperation, so they said nothing more on the floor.

Later, they baldly inserted into the legislative record a conversation that never occurred. In it, Sens. Graham and Kyl go back and forth, indicating their interpretation as co-sponsors of the final amendment was that it would in fact apply retroactively to any pending cases, and that the Supreme Court should evaluate its lack of jurisdiction over Hamdan when it decided the case. In other words it was the exact opposite of the agreement they had officially made on the floor with Senator Levin and others.

When the time came for the parties in Hamdan to submit supporting briefs, Sens. Kyl and Graham submitted an amicus curiae brief supporting the Government’s contention that the Supreme Court had no jurisdiction to hear the case. In that brief they referred back to their false Congressional record in attempting to persuade the Court. They shamefully and blatantly lied about what had actually transpired on the floor of the Congress. The Government’s own brief also referred to this false exchange. Thankfully the Court was not deceived when it ruled, but neither did it reprimand the Senators in the interests of maintaining cordial relations. When these two Senators tried to re-submit their brief a month later at the US Court of Appeals for the DC Circuit, Slate’s Emily Bazelon reports that court “issued an unusual order rejecting” their amicus brief even though they accepted several others.

To what depth will the GOP sink in handing over the reins of liberty to an overreaching Chief Executive? We are a society of laws, and Hamdan correctly pointed out that even the president is subject to them and not above them. He is not a monarch. While the issue here may seem arcane, at the end of the day it’s about the executive and legislative branches abrogating their responsibility to uphold the Constitution by deceptively attempting to remove an entire area of civil rights jurisdiction from the courts.

Do these senators have no shame?